Citation Nr: 1007538
Decision Date: 03/01/10 Archive Date: 03/11/10
DOCKET NO. 09-06 972 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas
THE ISSUE
Entitlement to an initial evaluation in excess of 70 percent
for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Benjamin D. Hooten, Attorney
at Law
WITNESSES AT HEARING ON APPEAL
The Veteran and his ex-wife
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The Veteran served on active duty from February 1980 to
February 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2008 rating decision, by
the North Little Rock, Arkansas RO, which granted service
connection for PTSD and assigned a 50 percent rating,
effective October 10, 2007. Subsequently, in February 2009,
a Decision Review Officer's decision increased the evaluation
for PTSD from 50 percent to 70 percent, effective October 10,
2007.
On November 4, 2009, the Veteran and his ex-wife appeared at
the RO and testified at a videoconference hearing before the
undersigned Veterans Law Judge, sitting in Washington, DC. A
transcript of the hearing is of record.
FINDING OF FACT
Since the effective date of the award of service connection,
the veteran's PTSD has been manifested by ongoing symptoms of
depression and anxiety, such as difficulty sleeping due to
recurring nightmares, exaggerated startle response, anger
outbursts, hypervigilance, suicidal ideations, social
isolation, and difficulties in adapting to stressful
circumstances that result in total social and occupational
impairment.
CONCLUSION OF LAW
The Veteran's PTSD is totally disabling since the effective
date of service connection. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3,
4.7, 4.10, 4.130, Diagnostic Code 9411 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran's claim for service connection for PTSD was
received in October 2007. Submitted in support of his claim
was VA Form 21-0781, wherein he reported being shot in August
1981; he stated that the incident has caused sleep problems,
and suicidal and homicidal ideations. He also stated that he
was thinking about how he could have killed himself and his
brother.
The record indicates that the Veteran was seen at a VA
emergency room in April 2006 with complaints of worsening
depression and suicidal ideations. It was noted that he
appeared very sullen and easily agitated/angered, and he
refused to elaborate on most questions asked of him. The
Veteran reported a history of depressive symptoms for an
unknown period of time. He stated that he had had thoughts
of death recently; he also reported that he did not feel safe
outside the hospital. It was also noted that the Veteran was
currently severely depressed with no initiating/triggering
incident. The diagnosis was bipolar disorder; the global
assessment of functioning (GAF) score was 31 at admission and
45 at discharge. He was again admitted to a VA hospital in
September 2006 due to depression and suicidal ideation. He
also endorsed anhedonia and hopelessness. On mental status
examination, it was noted that his mood was flat, and the
Veteran became agitated with repeated questioning. The
discharge diagnosis was bipolar disorder, type II, most
recent episode depressed; he was assigned a GAF score of 31.
He was again admitted to the hospital in October 2006 with
suicidal thoughts. The diagnosis was bipolar disorder with
suicidal ideations.
On November 29, 2007, the Veteran was seen and admitted at a
VA hospital with complaints of feeling anxious and paranoid;
he stated that he stopped taking his medications months ago
because they made him feel "like a zombie." The Veteran
reported being troubled by a nightmare of increasing
frequency in which he obtains a shotgun and shoots either
himself or his brother. The Veteran indicated that, for the
past month, he has been living alone in a cabin; he stated
that he previously lived with his wife, but she has since
left. On November 30, 2007, the Veteran was seen for
evaluation of his symptoms. The examiner noted that what the
Veteran had been calling paranoia was in fact hypervigilance
related to gunshots being fired in the woods surrounding his
home; he stated that this is a constant reminder of the
accidental discharge of a gun several years ago in which he
was wounded and the guilt he feels about "almost killing his
brother." The Veteran was tearful and anxious when
discussing this incident. The examiner stated that, based on
the interview, it was her belief that the Veteran's diagnosis
was PTSD rather than bipolar disorder. The discharge
diagnosis was PTSD versus bipolar disorder; the GAF score was
reported to be 21 at admission and 26 at discharge.
During a clinical visit at a VA mental health clinic in March
2008, the Veteran indicated that he was doing okay on his
medications. The diagnosis was PTSD; he was assigned a GAF
score of 51. When seen at the mental health clinic in
September 2008, the Veteran reported feeling better. The
diagnosis was PTSD; he was assigned a GAF score of 55.
The Veteran was afforded a VA examination in August 2008.
The Veteran reported problems with mood swings. He also
indicated that he has recurring nightmares about the incident
where he got shot; he stated that he awakens from that dream
and is scared and drained. The Veteran indicated that he
began having that dream in 1982 or 1983, but the dreams have
been significantly worse over the past four years. The
Veteran reported intrusive thoughts about that incident; he
stated that those thoughts are triggered by young policemen
in uniform. He gets startled easily by loud popping sounds
or loud noises. He does not go out to eat very often and if
he does, he sits where he can see people. The Veteran
indicated that he does not go to stores often. He tries to
avoid watching movies with violent content. It was noted
that the Veteran lives with his ex-wife. He had not worked
full time in more than one year, but was working 10 hours a
week for a friend who owns property. The Veteran indicated
that he sometimes does not have really good thoughts. He
will occasionally fish. He occasionally visits with his wife
and children; other times, he visits with his one friend.
On mental status examination, it was noted that the Veteran
was casually groomed. He was fully cooperative. Eye contact
was somewhat limited. He displayed anxiety and speech was
occasionally diffluent. The predominant mood was one of
anxiety. Affect was appropriate to content. Thought
processes and associations were logical and tight. No
loosening of associations was noted, nor was any confusion.
Memory was grossly intact. He was oriented in full spheres.
He reported some auditory hallucinations. Judgment and
insight were adequate. He reported some suicidal ideations
but denied intent; he also denied current homicidal ideation.
The pertinent diagnosis was PTSD; he was assigned a GAF score
of 43. The examiner stated that the Veteran met the criteria
for a diagnosis of PTSD; he noted that symptoms occur daily,
are severe, and have persisted for many years. The examiner
further stated that it would be very difficulty for the
Veteran to maintain gainful full-time employment because of
his PTSD symptoms.
The Veteran was seen at a mental health clinic in January
2009 with reports of feeling depressed. It was noted that
his ex-wife, on whom he was heavily dependent, had been
hospitalized. In addition, the Veteran had lost his job. He
denied any current suicidal ideations or rehearsals. The
diagnosis was PTSD, and he was assigned a GAF score of 41.
Received in March 2009 was a statement from the Veteran's ex-
wife indicating that, while they live together, theirs is a
very volatile relationship due to the Veteran's PTSD. She
noted that they began having problems shortly after they were
married. The Veteran's ex-wife described his difficulty
sleeping due to recurring nightmares, night sweats, and
anxiety attacks. She related that the most traumatic problem
for the Veteran and his family was his reaction to loud
noises and the police; she stated that the Veteran was so
paranoid that he would not allow anyone to leave the house.
She also noted that the Veteran had difficulty with groups or
crowds; she stated that his behavior became so bad hat she
gave up trying to attend any social or even family functions
with the Veteran. The Veteran's ex-wife also attested to his
explosive anger to the point that she has been afraid of him.
Also received in March 2009 was a statement from Mr. B.H., a
past employer of the Veteran, indicating that he had known
the Veteran since 1984 and had employed him several times.
Mr. H indicated that although the Veteran's work was of high
quality, over time he began to have to move him from crew to
crew because he would get into confrontations with other crew
members. He also seemed to become increasingly distracted,
causing those working with him to have problems as well. Mr.
H. also stated that, over time, the Veteran became both his
employee and his friend and it was hard watching him become
paranoid for no apparent reason; he also would get overly
angry, making it impossible to put him on a crew. He did
well working alone for awhile, but his performance and
attendance started to worsen. Mr. H. indicated that he was
forced to fire the Veteran; he stated that the Veteran's PTSD
had made him so confused that it has made him a risk to
himself and others on the job.
Disability evaluations are determined by comparing a
Veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2009).
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating. Otherwise, the lower rating
will be assigned. See 38 C.F.R. § 4.7.
A disability rating may require re-evaluation in accordance
with changes in a Veteran's condition. It is thus essential
in determining the level of current impairment that the
disability is considered in the context of the entire
recorded history. See 38 C.F.R. § 4.1. In a claim for a
higher original rating after an initial award of service
connection, all of the evidence submitted in support of the
veteran's claim is to be considered. See Fenderson v. West,
12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Staged ratings may
be assigned where the symptomatology warrants different
ratings for distinct time periods. After careful review of
the evidentiary record, the Board concludes that a uniform
evaluation is warranted for the Veteran's PTSD.
The severity of the veteran's PTSD is determined by 38 C.F.R.
§ 4.130, Diagnostic Code 9411. Under this code, a 70 percent
rating requires occupational and social impairment, with
deficiencies in most areas such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately, and effectively; impaired impulse control
(such as unprovoked irritability with periods of violence);
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances
(including work or a worklike setting); or the inability to
establish and maintain effective relationships.
A 100 percent rating requires total occupational and social
impairment, due to such symptoms as gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
or memory loss for the names of close relatives, own
occupation, or own name.
The Secretary, acting within his authority to "adopt and
apply a schedule of ratings," chose to create one general
rating formula for mental disorders. 38 U.S.C. § 1155; See
38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one
general formula to be used in rating more than 30 mental
disorders, there can be no doubt that the Secretary
anticipated that any list of symptoms justifying a particular
rating would in many situations be either under- or over-
inclusive. The Secretary's use of the phrase "such symptoms
as," followed by a list of examples, provides guidance as to
the severity of symptoms contemplated for each rating, in
addition to permitting consideration of other symptoms,
particular to each veteran and disorder, and the effect of
those symptoms on the claimant's social and work situation.
This construction is not inconsistent with Cohen v. Brown, 10
Vet. App. 128 (1997). The evidence considered in determining
the level of impairment under § 4.130 is not restricted to
the symptoms provided in the diagnostic code. Instead, the
rating specialist is to consider all symptoms of a claimant's
condition that affect the level of occupational and social
impairment, including, if applicable, those identified in the
DSM-IV. See38 C.F.R. § 4.126 (2009). If the evidence
demonstrates that a claimant suffers symptoms or effects that
cause occupational or social impairment equivalent to what
would be caused by the symptoms listed in the diagnostic
code, the appropriate, equivalent rating will be assigned.
Mauerhan v. Principi, 16 Vet. App. 436 (1992).
A GAF score is a scale reflecting the psychological, social,
and occupational functioning on a hypothetical continuum of
mental-health illness. See Richard v. Brown, 9 Vet. App.
266, 267 (1996), citing the Diagnostic and Statistical Manual
of Mental Disorders (4th ed. 1994). This is more commonly
referred to as DSM-IV. A GAF of 21 to 30 is defined as
behavior considerably influenced by delusions or
hallucinations or serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly
inappropriate, suicidal preoccupation) or an inability to
function in almost all areas (e.g., stays in bed all day, no
job, home or friends). A GAF of 31 to 40 is indicative of
some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or any
major impairment in several areas, such as work or school,
family relations, judgment, thinking or mood (e.g., depressed
man avoids friends, neglects family, and is unable to work;
child frequently beats up younger children, is defiant at
home, and is failing at school). A GAF of 41 to 50 is
indicative of serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifter) or any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). A GAF
of 51 to 60 is defined as moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). A GAF of 61 to 70 is indicative of some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy or theft within the household), but
generally functioning pretty well, has some meaningful
interpersonal relationships.
Given the depth and persistence of his recurrent nightmares,
depression, anxiety, intrusive recollections, anger
outbursts, hypervigilance, and social isolation, the veteran
is entitled to a 100 percent rating for his PTSD. 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (2009). The record clearly
shows that the Veteran's psychiatric disorder has
consistently been described as chronic and severe. While the
Veteran had been diagnosed with bipolar disorder since his
first hospital admission in April 2006, in November 2007, the
examiner explained that the Veteran's diagnosis was better
described as PTSD. In April 2006, he was assigned a GAF
score of 45, which is reflective of a serious impairment. At
that time, the veteran reported problems with depression,
irritability, suicidal ideations, social isolation and
difficulty with interpersonal relationships. It is
noteworthy that, following his admission in November 2007,
the Veteran was assigned a GAF score of 26, which is defined
as behavior considerably influenced by delusions or
hallucinations or serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly
inappropriate, suicidal preoccupation) or an inability to
function in almost all areas (e.g., stays in bed all day, no
job, home or friends).
Moreover, following a VA examination in August 2008, the
examiner stated that the Veteran met the criteria for a
diagnosis of PTSD; he noted that symptoms occur daily, are
severe, and have persisted for many years. The examiner
further stated that it would be very difficulty for the
Veteran to maintain gainful full-time employment because of
his PTSD symptoms. He was assigned a GAF score of 43,
reflecting serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational or school functioning
(e.g., no friends, unable to keep a job). The Veteran's past
employer noted that he had to fire the Veteran because he
would get into confrontations with other crew members. The
evidence of record also indicates that he is also unable to
establish and maintain effective relationships; while his ex-
wife helps take care of the Veteran, even she reported being
afraid of him and not letting the children stay around him.
It was noted that the Veteran tended to isolate and avoid
people. In summary, the record reflects total disability.
Accordingly, it is determined that there is evidence of total
occupational and social impairment. Based on the foregoing,
the Board finds that the level of severity of the Veteran's
PTSD has been 100 percent disabling since the effective date
of service connection. See 38 C.F.R. §§ 4.7, 4.126, 4.130,
Diagnostic Code 9411 (2009).
ORDER
A 100 percent evaluation for PTSD is granted from October 10,
2007, subject to the law and regulations governing the
payment of monetary benefits.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs